State Of Louisiana VS Gilbert Scott Stuckey
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DESIGNATED LTT FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 2327 STATE OF LOUISIANA VERSUS GILBERT SCOTT STUCKEY I On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 1009 0875 Section 1 Honorable Anthony J Marabella Jr Judge Presiding Hillar C Moore III District Attorney Attorneys for Appellee State of Louisiana Jaclyn C Chapman Assistant District Attorney Baton Rouge LA Prentice L White Attorney for Louisiana Appellate Project Defendant Appellant Gilbert Scott Stuckey Baton Rouge LA BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J Judgment rendered June 8 2012 PARRO I The defendant Gilbert Scott Stuckey was charged by bill of information with one count of cruelty to the infirmed count 1 a violation of LSA R 14 and one count S 93 3 of second degree battery count 2 a violation of LSA R 14 He pled not guilty on S 34 1 both counts Following a jury trial he was found guilty as charged on both counts Thereafter the state filed a habitual offender bill of information against him alleging he was a habitual offender in regard to count 1 offender status The defendant stipulated to his habitual On count 1 he was sentenced to twenty years of imprisonment at hard labor On count 2 he was sentenced to ten years of imprisonment at hard labor with that sentence to run concurrently with the sentence imposed on count 1 He now appeals challenging the preliminary examination and the sufficiency of the evidence For the following reasons we affirm the conviction habitual offender adjudication and sentence on count 1 affirm the conviction on count 2 amend the sentence on count 2 and affirm the sentence on count 2 as amended FA C The victim Mary Frances Stuckey is the mother of the defendant and a retired English teacher On October 7 2009 the defendant was living with her in her apartment on Bluebonnet Boulevard in Baton Rouge The victim testified the defendant liked to do the cooking at the apartment and didn like the victim to mess with it She stated My job t was to come and tell him when the timer went off On October 7 2009 the defendant was cooking chicken and the timer went off The victim went to the defendant bedroom door and told him the timer had gone off s Approximately ten or fifteen minutes later the defendant exited his room and asked about the timer When the victim responded that she had already told him it had gone off the defendant became angry took the chicken out of the oven slammed the chicken down on the counter and may have burned his hands doing so The victim stated the defendant 1 The verdict form listed count 1 as count 2 and count 2 as count 1 The jury however referenced the offenses by name in rendering the verdicts z The predicate offense was set forth as the defendant sDecember 10 2007 guilty plea under Nineteenth Judicial District Court Docket 0407 434 to possession of cocaine 2 then yanked her out of her chair and threw her into the sharp edge of the pantry where she kept the canned goods The defendant called the victim a bitch and cursed her He also threw her into one of the kitchen cabinets while she screamed stop stop stop The victim testified that after he had thrown me into the cabinet he had me on the floor and he was pounding my head onto the kitchen floor The victim stated the defendant then picked up a serrated kitchen knife and cut each of her hands After the defendant went to his bedroom the victim hid behind a chair and called 911 The defendant came out of his room and saw the victim He stated What are you doing bitch She told him she had called 911 and he approached the patio door to exit On his way out he turned to the victim and stated I will be back to kill you The victim indicated that prior to the incident she did not have any issues with falling or keeping her balance and had never suffered head trauma One week after the incident however she fell to the ground for no apparent reason while getting her mail from the post office box at her apartment complex After that incident she started having a headache Two days later she fell again while walking out of a bookstore She stated she was taken to the hospital diagnosed with a subdural hematoma and was hospitalized for four or five days At the time of her testimony at trial on February 8 2011 she was wearing pain patches on her head She indicated she started wearing the patches because she had such terrible headaches and the medicine she was taking was not doing any good She stated my headaches for a while there I had the headaches 24 but now they are 7 beginning to improve She testified she did not use a walker prior to the incident but now she needed one Additionally she stated I can be talking about something and totally forget my train of thought I guess some people would joke and say well that age has something to do with that But I had not been having that problem before The victim testified she had called the police before about the defendant being physically aggressive with or striking her She stated that approximately a month before the incident the defendant had talked about taking insurance out on her so that he could get money when she died She indicated he had also told her that he wished she was dead C The victim testified she drank wine but not every day She stated she probably had a glass of wine prior to the incident but denied she was inebriated or intoxicated at the time of the incident She indicated she was not taking any medication that would have affected her mental faculties at the time of the incident On cross examination the victim stated she was taking Cymbalta at the time of the incident as prescribed by her doctor to help with pain as well as depression She denied ever being diagnosed as being bipolar and denied she was taking Cymbalta for that condition She also denied falling over tables at a local restaurant falling in her apartment and needing home assistance prior to the incident She also denied losing teaching jobs due to drinking or alcoholism Dr Michael Loewe was accepted by the trial court as an expert in emergency room medicine He saw the victim at the emergency room of Our Lady of the Lake Hospital on October 7 2009 Her date of birth was September 19 1934 Dr Loewe ordered a major trauma evaluation for her including CAT scans of her head cervical spine chest abdomen and pelvis as well as Xrays of her ribs chest and lumbar spine His diagnosis of the victim was domestic altercation scalp contusion scalp laceration facial contusion and back contusion His physician notes indicated the patient was not to be discharged to her home due to her son abusing her and threatening to kill her SMFFICIENCY OF THE EVIDENCE In assignment of error number 2 the defendant argues the evidence was insufficient to support the verdicts because the victim accusations against him were done s to disguise her battle with substance abuse The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the state proved the essential elements of the crime and the s defendant identity as the perpetrator of that crime beyond a reasonable doubt State v Wright 980601 La App 1st Cir 2 730 So 485 486 writs denied 990802 99 19 2d La 10 748 So 1157 and 000895 La 11117100 99 29 2d 4 773 So 732 2d In conducting this review we also must be expressly mindful of Louisiana circumstantial s evidence test which states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence must be excluded See Wright 730 So at 486 LSA R 15 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct evidence is thus viewed the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Cruelty to the infirmed is the intentional whereby unjustifiable pain A 3 93 14 mistreatment or suffering is caused to Wright 730 So at 2d by any person an aged person LSA R S An aged person is any individual sixty years of age or older LSA R S C 3 93 14 The term intentional as used in LSAR 14 refers to a general S 93 3 criminal intent to mistreat and does not require a specific criminal intent to cause unjustifiable pain and suffering See LSA R 14 State v Echeverria 022592 La S 11 App 1st Cir 6 858 So 632 635 writ denied 032332 La 8 882 So 03 27 2d 04 20 2d 580 General criminal intent is present whenever there is specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act LSAR 14 S 10 2 Unjustifiable within the meaning of LSA R 14 is a term of limitation intended to distinguish that pain and S 93 3 suffering which is an inevitable consequence of care and treatment from that which is not justified by medical needs Echeverria 858 So at 635 2d As is pertinent here battery is the intentional use of force or violence upon the person of another LSAR 14 Second degree battery is a battery when the offender S 33 intentionally inflicts serious bodily injury LSAR 14 Serious bodily injury S 34 A 1 means bodily injury which involves unconsciousness extreme physical pain or protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member organ or mental faculty or a substantial risk of death LSAR 14 S 34 6 1 Second degree battery is a specific intent offense Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act LSAR 14 S 10 1 Specific intent may be proved by direct evidence such as statements by a defendant or by inference from circumstantial evidence such as a defendant sactions or facts depicting the circumstances State v Druilhet 971717 La App 1st Cir 6 716 So 422 98 29 2d 423 After a thorough review of the record we are convinced that any rational trier of fact viewing the evidence presented in this case in the light most favorable to the state could find the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of cruelty to the infirmed and second degree battery and the defendant identity as the perpetrator of those offenses s against the victim The verdicts rendered in this case indicate that the jury rejected the s defendant theory that the victim lied about the defendant attacking her in order to hide the cause of her injuries which was falling down due to drinking and or use of medication When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt State v Moten 510 So 55 61 La App 1st Cir writ denied 514 So 126 La 2d 2d 1987 No such hypothesis exists in the instant case Further the verdicts indicate the jury accepted the victim testimony and rejected the defendant attempts to discredit her s s This court cannot assess the credibility of witnesses or reweigh the evidence to overturn a fact finder determination of guilt The testimony of the victim alone is sufficient to prove s the elements of the offense The trier of fact may accept or reject in whole or in part the testimony of any witness State v Lofton 961429 La App 1st Cir 3 691 So 97 27 2d M 1365 1368 writ denied 971124 La 10 701 So 1331 97 17 2d Additionally in reviewing the evidence we cannot say that the jury determination was irrational under the s facts and circumstances presented to them See State v Ordodi 060207 La 11 06 29 946 So 654 662 2d An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 072306 La 1 1 So 417 418 per 09 21 3d curiam This assignment of error is without merit PRELIMINARY EXAMINATION In assignment of error number 1 the defendant argues a new trial should be granted because the trial court inserted its comments at the probable cause hearing and failed to make a ruling on probable cause In felony cases where an indictment has not been issued a defendant has both a constitutional and a statutory right to a preliminary examination LSA Const art I 14 LSAC art 292 The primary function of the examination is to ensure that probable P Cr cause exists to hold the accused in custody or under bond obligation State v Spears 92 1701 La App 1st Cir 3 634 So 9 10 No preliminary examination shall be 94 11 2d held invalid for any purpose because of an informality or error that does not substantially prejudice the defendant LSAC art 298 P Cr Errors alleged to have occurred at the preliminary hearing are moot after the defendant has been tried and convicted State v Herrin 562 So 1 10 La App 1st Cir writ denied 565 So 942 La 1990 2d 2d Prior to trial the defendant moved for a preliminary hearing and bond reduction so that he could be discharged from his bond obligation The trial court held a preliminary examination At the hearing East Baton Rouge Parish Sheriff Office Deputy Mark Bienvenu s testified concerning his investigation of the incident that resulted in the arrest of the defendant On cross examination defense counsel asked Deputy Bienvenu if he knew of 7 any prior history of incidents between the victim and the defendant Deputy Bienvenu answered negatively but the trial court stated I do I do if you want to ask me Thereafter at the end of the hearing the court stated To answer defense counsel I have the defendant sbond file four previous times for battery on his mother your question He has been arrested on at least The defense did not object to any comment by the trial court or to any failure by the court to make a formal ruling Neither did the defense move to recuse the trial court The defense also did not seek supervisory relief from this court for any violation of his right to preliminary examination This assignment of error is moot See Herrin 562 So at 10 2d REVIEW FOR ERROR Initially we note our review for error is pursuant to LSAC art 920 which P Cr provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence LSA C Part 920 Cr 2 If at any time either after conviction or sentence it shall appear that a person convicted of a felony has previously been convicted of a felony the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction LSA R 15 After a habitual offender S 529 a D 1 information is filed the court in which the subsequent conviction was had shall cause the person to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law Id The court shall also require the offender to say whether the allegations are true Id The statute further implicitly provides that the court should advise the defendant of his right to remain silent State v Griffin 525 So 705 706 La App 1st Cir 1988 2d In the instant case at the habitual offender arraignment the trial court advised the defendant Mr Stuckey the district attorney has filed a habitual offender bill of information against you charging that you are a second offender Defense counsel indicated she had not had an opportunity to speak with the defendant Thereafter the court stated All right 8 I assume you want a hearing The defendant replied Yes Sir The court ordered that a plea of not guilty be entered and set the matter for a habitual offender hearing and sentencing At the beginning of the habitual offender hearing defense counsel advised the trial court Your Honor this is going to be a stipulation We will stipulate that the defendant is in fact a second felony offender Thereafter the state set forth in conjunction with the stipulation that it would like to offer into evidence a certified copy of the bill of information and minutes concerning the predicate offense listed in the habitual offender bill Defense counsel stated she had reviewed the referenced minutes and bill of information with the defendant and he admitted he was the person listed in those documents The trial court asked the defendant if he had conferred with his attorney and further asked I s that your understanding is that what you want to do answered affirmatively habitual offender The defendant Thereafter the court adjudged the defendant a secondfelony The defendant interests were fully protected and any technical non s compliance with the statutory directives in LSAR 15 was harmless S 529 a D 1 LSA C art 921 State v Cook 11 2223 La 3 82 So 1239 1240 per P Cr 12 23 3d curiam At the habitual offender sentencing defense counsel advised the trial court that the state was pursuing habitual offender proceedings against the defendant on count 1 The court recognized the state was pursuing habitual offender proceedings on the cruelty to the infirmed charge In sentencing the defendant the court stated t he facts in this case are so disturbing that a man Mr Stuckey would beat his mother on more than one occasion The court told the defendant t is the second time that you beat your his mother and I find it typical of what I have seen of you the entire time that I been your ve judge by saying well you know we just can live together I moved my stuff out so you t know things ought to be all right The court noted the defendant had beaten the victim s 3 The habitual offender bill of information concluded WHEREFORE the State of Louisiana through the District Attorney for East Baton Rouge Parish prays that this Honorable Court adjudge Gilbert Stuckey a second felony offender under case number 0210403 sic of the 19 Judicial District Court for his conviction of the charge of Cruelty to the Infirmed and sentence him thereunder Z head against a refrigerator and had threatened to come back and kill her Thereafter the court imposed maximum enhanced sentences on counts 1 and 2 The state did not attempt to establish the defendant shabitual offender status as to count 2 Thus the applicable penalty on count 2 was a fine of not more than two thousand dollars or imprisonment with or without hard labor for not more than five years or both LSAR 14 The trial court however imposed sentence on count 2 as if the S 34 C 1 defendant had been adjudged a second felony habitual offender on that count This court may however correct the illegal sentence by amendment on appeal rather than by remand for resentencing because the trial court attempted to impose the maximum legal sentence on count 2 and thus no exercise of sentencing discretion was involved See LSA C P Cr art 882 State v Miller 962040 La App 1st Cir 11 703 So 698 701 writ A 97 7 2d denied 980039 La 5 719 So 459 98 15 2d Accordingly the sentence on count 2 is hereby amended to five years of imprisonment at hard labor which sentence shall run concurrently with the sentence imposed on count 1 CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT 1 AFFIRMED CONVICTION ON COUNT 2 AFFIRMED SENTENCE ON COUNT 2 AMENDED AND AFFIRMED AS AMENDED 10
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